Velasquez testified that, upon realizing that he had left his uncle
behind with the four men, he returned because he feared trouble. Tr. 88,
95-96, 370. Upon his return, he saw that one of the men had Arzu's chain
in his hands while Gonzalez remained standing against the wall with his
clenched fist steadied inside his coat jacket at his waist area,
approximately four feet away from Velasquez. Tr. 14, 16, 38, 95, 99, 100,
105, 165. Velasquez did not run to obtain help because, observing
Gonzalez's stance, he believed Gonzalez was armed with a weapon. Tr. at
7, 16, 99, 102.

Gonzalez's petition was filed on October 30, 2000 and is governed by
28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective
Death Penalty Act (hereinafter "AEDPA"). See Morris v. Reynolds,
264 F.3d 38 (2d Cir. 2001). Under AEDPA, a federal court may not grant a
writ of habeas corpus with respect to any claim that was "adjudicated on
the merits" in the state court unless the state court decision is either
contrary to clearly established federal law or involved an unreasonable
application of clearly established federal law, as determined by the
United States Supreme Court. See 28 U.S.C. § 2254(d); Morris, 264
F.3d at 46 (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Clearly
established federal law refers to the holdings only, not the dicta, of
the United States Supreme Court. See id. The state court's application of
clearly established federal law must be objectively unreasonable, not
merely erroneous. See Williams, 529 U.S. at 387 n.14; accord Clark v.
Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000). of course, where, as here,
a party appears pro se, the courts are required to broadly construe the
pro se pleadings and interpret them "to raise the strongest arguments
that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).

(1) what the state courts have done in similar cases; (2)
whether the history of the case suggests that the state
court was aware of any ground for not adjudicating the
case on the merits; and (3) whether the state court's
opinion suggests reliance upon procedural grounds rather
than a determination on the merits.

Id. at 314 (citing Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999)).
To hold otherwise, would be "at odds with the animating spirit of the
AEDPA which respects the state court's decision as to all [state and
federal] claims." Id. at 313.

Applying the analysis set forth by the Second Circuit, this Court finds
that the State Appellate Division's decision here qualifies as an
adjudication on the merits under the AEDPA, even though the Appellate
Division did not discuss any federal claim. It is well-settled that in a
criminal prosecution, failure to prove an element of a crime beyond a
reasonable doubt would violate the United States Constitution. See
Jackson v. Virginia, 443 U.S. 307 (1979). The Appellate Division held
that, based on the record before it, there was "legally sufficient"
evidence of both Gonzalez's "display" of an object that appeared to be a
gun and of his having the requisite intent. Gonzalez, 698 N.Y.S.2d at 4.

The Appellate Division did not cite what New York courts have done to
resolve such matters in similar circumstances. However, its decision was
based on the parties' legal memoranda which detailed relevant state laws
and precedents. Further, that court was not presented with any procedural
or other ground that would bypass adjudicating the appeal on the merits.
Moreover, the Appellant Division's written opinion itself explicitly
states that it is based on the merits of the claim, rather than
procedural grounds. Finally, there can be no doubt that the Appellate
Division's adjudication of the sufficiency of the evidence was reduced to
a judgment because it affirmed the conviction on that ground.

Accordingly, this Court is constrained under § 2254(d) to give due
deference to the State court's ultimate decision regarding the
sufficiency of the evidence, unless that determination is deemed to be an
unreasonable application of, or contrary to, clearly established federal
law.

Critical to Gonzalez's second claim, as will be discussed below in
Section 11(C), apart from the trial proceeding itself, there is no record
of any State court proceeding or adjudication regarding the
identification issues raised by Gonzalez in his Traverse Brief.

Gonzalez claims that there was insufficient evidence of his "display"
of a weapon and of his intent for a jury to find him guilty of robbery
beyond a reasonable doubt. As explained below in further detail, the
Court does not find the record to be devoid of evidence to support the
essential elements of Gonzalez's robbery conviction. Accordingly, the
Appellate Division's decision affirming Gonzalez's conviction as based on
sufficient evidence was not contrary to or an unreasonable application of
clearly established federal law.

1. "Display" under New York Law

Gonzalez was convicted of robbery under New York Penal Law §
160.15, which is committed when, during the course of a forcible
stealing, a participant in the crime "[d] isplays what appears to be a
pistol, revolver, rifle, shotgun, machine gun or other firearm." Gonzalez
was also convicted of robbery under New York Penal Law § 160.10,
which is committed by a participant in a forcible stealing when he
displays "what appears to be a pistol, revolver, rifle, shotgun, machine
gun or other firearm" during the course of the crime or immediate flight
therefrom. To establish the element of display, the prosecution must
demonstrate that: (1) the defendant consciously displayed "something that
could reasonably be perceived as a firearm with the intent of compelling
an owner of property to deliver it up or for the purpose of preventing or
overcoming resistance to the taking;" and (2) the display was actually
witnessed by the victim by sight, sound or touch. People v. Baskerville,
457 N.E.2d 752, 756 (N.Y. 1983). The element has been construed broadly
to require that "the defendant, by his actions, consciously manifests the
presence of an object to the victim in such a way that the victim
reasonably perceives that the defendant has a gun." People v. Lopez,
535 N.E.2d 1328, 1332 (N.Y. 1989). A person is criminally liable for the
conduct of another, who engages in conduct that constitutes a crime, if
he "solicits, commands, importunes, or intentionally aids such person to
engage in such conduct." New York Penal Law § 20.20; see People v.
Jackson, 574 N.Y.S.2d 661 (N.Y. App. Div. 1st Dept. 1991).

Accordingly, the Court dismisses without prejudice Gonzalez's petition
for habeas corpus on the grounds that his state conviction was based on
suggestive identifications in violation of the U.S. Constitution.

III. CONCLUSION AND ORDER

For the foregoing reasons, it is hereby

ORDERED that Petitioner Jonathan Gonzalez's Application for a Writ of
Habeas Corpus on the grounds of insufficient evidence be dismissed;

ORDERED that Petitioner Jonathan Gonzalez's Application for a Writ of
Habeas Corpus on the grounds of impermissible identification evidence be
dismissed without prejudice; and it is finally

ORDERED that the Clerk of Court is directed to close this case.

As Alvarez has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. See
28 U.S.C. § 2253(c). See also United States v. Perez, 129 F.3d 255,
259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1014-16
(2d Cir. 1997). The Court certifies that, pursuant to
28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken
in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).

SO ORDERED.

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